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The Danger of Speech Codes

Since beginning our "State of Free Speech on Campus" blog series (which reviews speech codes at each of America’s top 25 colleges and universities as ranked by U.S. News & World Report, and explains why FIRE rates each school as a red, yellow, or green light), we have gotten a number of comments from students along the following lines: "FIRE’s rating of my school is wrong because we’re free to speak our minds—the university doesn’t actually enforce those policies you write about." In reality, FIRE’s speech code ratings are based solely on a school’s written policies, and not on the extent to which those policies are or are not enforced on campus. We deal with instances of punishment of free speech separately through our Individual Rights Defense Program. The reason we devote an entire database just to written policies is because those policies, by their mere existence, exert a powerful effect on campus speech. That is what I want to address here.

The "our speech codes aren’t enforced" argument was the basis of a March editorial in Rice’s student newspaper, the Thresher. In our State of Free Speech on Campus: Rice University blog, we criticized a policy that prohibits (among other things) "[t]ransmitting unsolicited … material which explicitly or implicitly refers to sexual conduct." We pointed out that such a policy could be used to censor an e-mail from an LGBT student group advertising a "coming out" event, since a student receiving the message could perceive it as implicitly referring to sexual conduct. The Thresher criticized our decision to rate Rice as a red light on the grounds that the university does not enforce the policy, writing that "the university as a whole does an impressive job of allowing dissemination in all forms, consistently overriding a rule that, yes, could be interpreted as silencing LGBT groups." (Emphasis added.)

And yesterday, we received an e-mail from a Vanderbilt University student criticizing our rating of Vanderbilt because she does not feel that her right to free speech at Vanderbilt is limited, in spite of a sexual harassment policy that prohibits "Remarks or jokes that denigrate because of gender" and "[i]nappropriate or offensive behavior that is not necessarily threatening, but usually produces feelings of discomfort in the person toward whom it is directed." More generally—and I will touch on this only briefly here, as this important issue will be the subject of its own blog—this e-mail reveals how a lifetime of censorship and misinformation about free speech has affected the student population. This student further writes:

Many of my male friends make gender-related comments and jokes all the time. I don’t see that as sexual harassment. Neither would Vanderbilt because I am not complaining about it. However, if I did feel uncomfortable, I am glad to know that I can take advantage of my rights by telling someone, and I know that the offender will face consequences. This person should face consequences, according to the Bill of Rights, because my right to the pursuit of happiness would be hindered. Thus, the Student Handbook is merely trying to protect our rights by making sure others do not abuse their right of free speech. [Emphasis added.]

This letter illustrates the phenomenon that FIRE President Greg Lukianoff refers to as "unlearning liberty"—the lack of awareness about the importance of free speech that occurs as a result of administrative censorship, which students now encounter at every level of their education, that teaches students to choose censorship instead of discussion to combat ideas with which they disagree.

Getting back to the topic at hand, it is crucial for students to understand that the mere existence of restrictive speech codes on campus has a terribly detrimental effect on the free exchange of ideas, regardless of whether the university enforces those policies. This is true for two reasons. First, while some students may feel free to speak their minds despite written regulations prohibiting protected speech, others undoubtedly will not feel so comfortable. Therefore, even if the university never enforces a particular speech code, it is impossible to know how much protected speech simply never took place because of the code’s existence. This self-censorship is what is known as a "chilling effect" on free speech. Second, so long as a school’s policies allow for the punishment of protected speech, students’ rights are dangerously insecure. While one administration may be supportive of free speech and choose not to enforce certain policies, a change in leadership could bring a sudden crackdown on student speech. A federal court recognized this very problem in the speech code case of Bair v. Shippensburg University, 280 F. Supp. 2d 357, 373 (M.D. Pa. 2003), stating, "While we recognize that citing students under the suspect provisions has not been a common practice, in the hands of another administration these provisions could certainly be used to truncate debate and free expression by students." Moreover, speech codes are notoriously vulnerable to abuse and double standards, so some students may honestly feel free to speak their minds while others who hold unpopular opinions may honestly feel their speech is stifled.

We hope that students will come to recognize the threat that speech codes pose to their rights, and stop defending their administrations for merely choosing not to enforce these impermissible policies.